FILED

United States Court of Appeals

Tenth Circuit

October 24, 2007

UNITED STATES CO URT O F APPEALS

Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

R AU L C . ZA PA TA ,
Plaintiff - Appellant,
v.
PUBLIC D EFENDERS OFFICE,
SU SA N PO RTER, Attorney for the
State Public Defenders Office,

No. 06-2334
(D.C. No. CIV-06-952 M CA/KBM )
(D . N.M .)

Defendants - Appellees.
__________________________
R AU L C . ZA PA TA ,
Plaintiff - Appellant,
v.

No. 07-2031
(CIV-06-1108-M CA-KBM )
(D . N.M .)

RA UL LO PEZ,
Defendant - Appellee.

OR DER AND JUDGM ENT *

After examining appellants briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The cases are therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.

Plaintiff-Appellant Raul C. Zapata, acting pro se, commenced two civil

actions against the attorneys who represented him in a state criminal prosecution,
arguing those attorneys provided him ineffective representation. The district
court permitted Zapata to pursue these civil actions in forma pauperis, see 28
U.S.C. 1915, but dismissed both complaints with prejudice pursuant to 28
U.S.C. 1915(e). Having jurisdiction to consider these appeals under 28 U.S.C.
1291, we AFFIRM . 1
I.

Background
In his first complaint, which is the subject of appeal No. 06-2334, Zapata

sued the New M exico Public Defenders Office (Office) and an attorney
employed by that office, Susan Porter. Zapata alleged that the Office assigned
Porter to represent him in the state criminal prosecution. After the district court
dismissed Zapatas federal civil complaint with prejudice, he tried unsuccessfully
to amend his complaint to add John Bigelow Public Defender of AID New
M exico. According to Zapata, Bigelow was Porters supervisor.
In his second federal civil complaint, which is the subject of appeal
No. 07-2031, Zapata sued Raul Lopez, a private attorney who, pursuant to a

W e GRANT Zapatas motions to pursue both of these appeals in forma

pauperis. See 28 U.S.C. 1915(a), (b).
2

contract with the public defenders office, represented Zapata in the state criminal
prosecution after Porter withdrew. Zapata later, on his own, began adding John
Bigelow, the Chief Public D efender, to the caption in the pleadings he filed in
this case.
Zapata asserted claims against these defendants under 42 U.S.C. 1983,
alleging they deprived him of his Sixth Amendment and due process rights to
effective representation in a criminal proceeding. As relief, Zapata sought money
damages and Lopezs disbarment. 2 The district court dismissed both complaints
with prejudice, ruling that Zapata could not, as a matter of law, obtain the relief
he seeks against these defendants under 1983, and that Zapata could not amend
his complaints to state a claim upon which relief could be granted. Zapata
appeals those decisions.
II.

Standard of review
W e review de novo the district courts decisions to dismiss both of Zapatas

complaints pursuant to 28 U.S.C. 1915(e)(2). 3 See Trujillo v. W illiams, 465

2

Because Zapata specifically invoked 1983, and because he sought only

civil remedies, we do not interpret Zapatas complaints to seek habeas relief from
any state-court custody or conviction.
3

In a case where the court has permitted a plaintiff to proceed without the
prepayment of fees, 28 U.S.C. 1915(e)(2) provides that,
[n]otwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that
(continued...)
3

F.3d 1210, 1214, 1215 (10th Cir. 2006). The district court may sua sponte
dismiss an action under 1915(e)(2) for failure to state a claim if the
allegations, taken as true, show the plaintiff is not entitled to relief. Jones v.
Bock, 127 S. Ct. 910, 920 (2007). Before dismissing, however, it must be clear
that allowing [the plaintiff] an opportunity to amend his complaint would be
futile. Trujillo, 465 F.3d at 1224; see also Gaines v. Stenseng, 292 F.3d 1222,
1225 (10th Cir. 2002). Further, this court will liberally construe a pro se
plaintiffs pleadings. See Gaines, 292 F.3d at 1224; see also H aines v. Kerner,
404 U.S. 519, 520 (1972).
III.

M erits
Zapata sued these defendants under 42 U.S.C. 1983, alleging they

deprived him of his Sixth Amendment and due process rights to effective
representation in a criminal proceeding. Section 1983 provides that every

(...continued)
(A) the allegation of poverty is untrue; or
(B) the action or appeal
(i) is frivolous or malicious;
(ii) fails to state a claim on w hich relief may
be granted; or
(iii) seeks monetary relief against a defendant
who is immune from such relief.
4

person who acts under color of state law to deprive another of constitutional
rights shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. Lawrence v. Reed, 406 F.3d 1224, 1229
(10th Cir. 2005) (quoting 42 U.S.C. 1983) (alterations omitted). To state a
cause of action under 1983, therefore, Zapata must allege two things: (1) The
plaintiff was deprived of a right secured by the Constitution or laws of the United
States, and (2) defendant deprived [him] of this right acting under color of state
law. M aestas v. Lujan, 351 F.3d 1001, 1012 n.1 (10th Cir. 2003).
Zapatas claims against his defense attorneys fail to state a 1983 claim
because a public defender representing an indigent defendant in a state criminal
proceeding does not act under color of state law. See Polk County v. Dodson,
454 U.S. 312, 314 (1981); see also Harris v. Champion, 51 F.3d 901, 909 (10th
Cir. 1995). Although a public defender may be paid with state funds, she acts
independent of the states authority, and instead exercises her independent
judgment in representing a criminal defendant. See Dodson, 454 U.S. at 317-19,
321-22, 324-25. Zapata, therefore, cannot recover under 1983 against
Defendant-Appellee Susan Porter, who was the public defender designated to
defend Zapata. The same is true of Defendant-Appellee Raul Lopez, who
represented Zapata under a contract with the public defenders office. Cf.
Lemm ons v. Law Firm of M orris & M orris, 39 F.3d 264, 266 (10th Cir. 1994)
(holding private attorney did not act under color of state law for 1983
5

purposes); Barnard v. Young, 720 F.2d 1188, 1188-89 (10th Cir. 1983) (same);
Smith v. Freestone, No. 99-4005, 1999 W L 510524, at *1 (10th Cir. July 20,
1999) (unpublished) (relying on Dodson and holding that plaintiff could not assert
1983 claim against attorneys appointed to represent prisoners pursuant to a
contract with the state of Utah).
And, to the extent Zapata has properly asserted a claim against him, Zapata
also cannot recover against Porters supervisor, Bigelow. See Dry v. City of
Durant, No. 99-7137, 2000 W L 1854140, at *6 (10th Cir. Dec. 19, 2000)
(unpublished) (holding under Dodson that, where plaintiff failed to establish that
defendant police officers were acting under state law for 1983 purposes,
plaintiffs claims against the officers supervisors also failed because those
claims against the supervisory defendants are derivative in nature).
To the extent Zapata alleges that the public defenders office is liable under
1983 because that office hired Porter and assigned her to represent Zapata,
those allegations also fail to state a claim on which relief may be granted because
[s]ection 1983 will not support a claim based on a respondeat superior theory of
liability, D odson, 454 U.S. at 325; that is, on a theory that the employer is
responsible for its employees wrongful acts, see Blacks Law Dictionary 1179
(5th ed. 1979). M oreover, it appears that the N ew M exico Public D efenders
Office is an arm of the state and, thus, is not a person amenable to suit under

 1983. See M cLaughlin v. Bd. of Trustees of State Colls., 215 F.3d 1168, 1172
(10th Cir. 2000); Harris, 51 F.3d at 905-06.
Liberally construing his complaints, Zapata may be able to assert a
malpractice action under state law against his attorneys. See Dodson, 454 U.S. at
325 (declining to express any views as to a public defenders liability for
malpractice in an appropriate case under state tort law); see also Lemmons, 39
F.3d at 266. But such an action would not implicate the federal courts
federal-question jurisdiction. See 28 U.S.C. 1331. Further, because Zapata and
the defendants are residents of New M exico, such state-law malpractice claims
would also not implicate federal courts diversity jurisdiction. See 28 U.S.C.
1332. As we have concluded Zapata has failed to state a claim under 1983,
the district court acted within its discretion to also dismiss any pendent state law
claims.
On appeal, Zapata has filed several motions w ith this court seeking to
amend his complaints. W e must deny these motions because Zapata cannot raise
a new claim before this court that he did not previously raise before the district
court, see M acArthur v. San Juan County, 495 F.3d 1157, 1161 (10th Cir. 2007).
IV.

Conclusion
For these reasons, we AFFIRM the district courts decisions dismissing

both of Zapatas complaints with prejudice under 28 U.S.C. 1915(e). Further,

Zapatas motions filed w ith this court seeking to amend his complaints are
DENIED.
The mandates shall issue forthwith.
ENTERED FOR THE COURT

David M . Ebel
Circuit Judge